05980610
03-04-1999
Priya D. Lal, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Priya D. Lal v. Department of the Army
05980610
March 4, 1999
Priya D. Lal, )
Appellant, )
) Request No. 05980610
v. ) Appeal No. 01964872
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On April 8, 1998, the Department of the Army (hereinafter referred to
as the agency) initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Priya D. Lal
v. Robert M. Walker, Acting Secretary, Department of the Army, EEOC
Appeal No. 01964872 (March 24, 1998). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
After a review of the agency's request for reconsideration, appellant's
response thereto, the previous decision, and the entire record, the
Commission finds that the agency's request does not meet the criteria in
29 C.F.R. �1614.407(c). Therefore, it is the decision of the Commission
to deny the agency's request. The decision in EEOC Appeal No. 01964872
(March 24, 1998) remains the Commission's final decision. The agency
shall comply with the provisions of the Order, as modified below.<1>
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to offer appellant immediate placement into
the position at issue, or a substantially equivalent position, retroactive
to the date the selectee's placement into the position became effective
(April 18, 1994). Appellant shall be provided with appropriate backpay,
and benefits, including seniority, as indicated below.
2. The agency shall determine the appropriate amount of backpay,
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of backpay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of backpay and/or
benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall conduct a supplemental investigation to determine
whether appellant is entitled to compensatory damages. During the
investigation, the agency shall allow appellant to present evidence in
support of his claim for damages.<2> Thereafter, the agency shall issue
a final decision as to appellant's compensatory damages claim. Appellant
shall cooperate with the agency. The supplemental investigation and
issuance of the final decision must be completed within sixty (60)
calendar days of the date this decision becomes final.
4. The agency shall provide training in the obligations and duties imposed
by Title VII to the selecting official responsible for the action at
issue.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Martin Army Community Hospital, Fort
Benning, Georgia, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
March 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 The Administrative Judge found some testimony to support a claim for
compensatory damages. Accordingly, the Order has been modified to include
a supplemental investigation with regard to that issue.
2 The Commission's decision in Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993), describes in detail the type of evidence
which should be presented in support of a claim for compensatory damages.